Suwon District Court-2015-Gu 63716,64313 (Consolidated) ( October 20, 2016)

The instant tax invoice is different from the facts and does not constitute a bona fide transaction party.

In light of the fact that there is little purchase compared to the sales amount of high-amount and that it is difficult to prove that the field photographs submitted by the Plaintiff alone are a bona fide transaction party, it is difficult to accept the claim statement.

Article 16 of the Value-Added Tax Act

Seoul High Court 2016Nu75731 Disposition revoking Value-Added Tax Imposition

Cho 00 et al.

00. Head of tax office

Suwon District Court Decision 2015Guhap63716 Decided October 20, 2016

2017.4

April 18, 201

1.The judgment of the first instance shall be modified as follows:

A. The defendant

(1) On September 1, 2012, the part exceeding KRW 2,411,222,561 in the disposition of imposition of value-added tax of KRW 2,457,123,460 (including additional tax) for Plaintiffq metal corporation on September 1, 201, and the part exceeding KRW 1,203,190 in the disposition of imposition of value-added tax of KRW 1,203,190 in April 3, 2013 (including additional tax), and the part exceeding KRW 1,203,190,630 in the disposition of imposition of value-added tax of KRW 1,20 in the year 201;

(2) On August 1, 2013, the part of the disposition imposing value-added tax of KRW 1,605,806,981 on Plaintiff www in excess of KRW 1,605,80 out of the disposition imposing value-added tax of KRW 2,639,314,640 in 201 is revoked.

B. The plaintiffs' remaining claims are dismissed.

2. Of the total litigation costs, 90% of the portion arising between the Plaintiffq metal corporation and the Defendant is borne by the Plaintiffq metal corporation, the remainder is borne by the Defendant, and 95% of the portion arising between the Plaintiff Cho www and the Defendant is borne by the Defendant, and the remainder is borne by the Defendant.

1. Purport of the claim (the plaintiff reduced the purport of the claim in the trial)

Plaintiffq Metal Co., Ltd.: the Defendant’s imposition of value-added tax of KRW 2,457,123,460 on September 1, 201 for Plaintiffq metal Co., Ltd. on September 1, 2012 and the imposition of value-added tax of KRW 1,722,343,050 on April 3, 2013 on April 3, 2013 shall be revoked both.

Plaintiff Cho www: The Defendant’s imposition of value-added tax of KRW 1,639,314,640 on August 1, 201 as of August 1, 2013 is revoked.

2. Purport of appeal

Plaintiffs: The judgment of the first instance court is modified as follows. The same decision as the purport of the Plaintiff’s claim (the purport of the appeal is also considered to have been reduced as above according to the reduction of the purport of the claim).

The judgment of the court of first instance is revoked, and the plaintiffs' claims corresponding to the revocation are dismissed.

1. Details of the disposition;

The reasoning for this part of this Court’s judgment is as stated in the corresponding part of the judgment of the first instance except for the following parts or any additional parts, and thus, it shall be quoted in accordance with Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

○ The third page of the judgment of the first instance court shall be as follows:

○ The following shall be added next to 5 pages of the first instance judgment:

G. On October 21, 2016, the court of first instance rejected the part of the claim for revocation of additional dues in the lawsuit filed by Plaintiff www on the grounds that the part of the claim is not a subject matter of appeal litigation. On the remaining claims of the Plaintiffs, the court rendered a judgment in favor of the Plaintiffs on the grounds that the part exceeding the amount of general under-reported additional taxes is unlawful. Accordingly, the Plaintiffs and the Defendant appealed respectively on the grounds that the part of the disposition exceeding the amount of general under-reported additional taxes is unlawful. In accordance with the purport of the judgment of the first instance on March 17, 2017 where the lawsuit is pending in the trial, the Defendant dismissed ex officio the part of the judgment of the first instance and the part in favor of the Plaintiffs in the judgment of the first instance on March 21, 2017 (hereinafter referred to as “each disposition in this case”) by filing an application for modification of the purport of the claim.

○ The written judgment of the first instance court is 5 to 2 4 pages as follows.

[Ground of recognition] Facts without dispute, Gap 1, 2, 3 evidence, Eul 1, 2, 31 evidence (including Serial numbers, 2016Nu75625, hereinafter the same shall apply), Gap 2, and 3 evidence (2016Nu75731), the purport of the whole pleadings

2. Whether each of the dispositions of this case is legitimate

A. Plaintiffs’ assertion, relevant statutes, and facts of recognition

The reasoning for this part of the judgment is the same as that of the corresponding part of the judgment of the court of first instance (from 6 to 11 pages on the 5th day of the judgment of the court of first instance) except for the following parts written by the court, and thus, this part shall be quoted.

○ From 6th to 12th (12th) of the judgment of the first instance court, ‘(3)' shall be deleted.

○ The judgment of the first instance court, 7th day below, 8th day below, is the ley’s “t”.

○ The last 11th written judgment of the first instance court shall be followed as follows.

[Ground of recognition] Facts without dispute, Gap 4 through 39 evidence, each entry of Eul 2 through 30 evidence, the purport of the whole pleadings

B. Determination

(1) Whether the instant tax invoice is “other tax invoice different from the fact”

(A) Relevant legal principles

Article 17(2)2 of the former Value-Added Tax Act (amended by Act No. 11129, Dec. 31, 201) provides that an input tax amount shall not be deducted from the output tax amount in cases where the entries of a tax invoice are different from the facts. Here, meaning that the entries of a tax invoice are different from the facts. In light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that where the ownership of income, profit, calculation, or transaction subject to taxation is nominal, and there is a separate person to whom such income, profit, act, or transaction belongs, the person to whom such income, profit, or transaction belongs shall be the tax obligor and the other person to whom such income, profit, or transaction belongs shall be the tax obligor. In light of the purport of Article 14(1) of the Framework Act on National Taxes that provides that the necessary entries of a tax invoice do not coincide with those of a transaction contract, etc. prepared between the parties to the goods or

In addition, in general, the burden of proving the facts of taxation requirements in a lawsuit seeking revocation of tax imposition, but if it is revealed that the facts of taxation requirements have been presumed in light of the empirical rule in the specific litigation process, it cannot be readily concluded that the pertinent tax disposition is an unlawful disposition that failed to meet the taxation requirements unless the pertinent facts are proven that the pertinent facts were not eligible for application of the empirical rule (see Supreme Court Decision 2009Du6568, Sept. 24, 2009).

(B) A tax invoice not recognized as a different tax invoice.

u) u

In light of the following circumstances acknowledged by comprehensively considering the respective descriptions of evidence Nos. 25 and 15 and the overall purport of the pleadings, it is difficult to readily conclude that the above acknowledged facts alone are tax invoices issued from Plaintiffqu as false tax invoices or otherwise there is no evidence to acknowledge them.

① The u representative stated that the investigative agency purchased waste Dong, etc. from so-called ‘Madama', transported the vehicle directly to the seller, followed up the vehicle, and then purchased the vehicle from the seller on the following day by withdrawing the price received from the seller, and then purchasing the waste Dong, etc. to be purchased again.

② Since the above contents of thisii are very specific in terms of the size of a place of business, the transaction method with the seller, and the transaction method with the seller, it is difficult to exclude the possibility thatu has delivered a tax invoice and issued a tax invoice.

3. Thisii is subject to investigation on suspicion that there was an issuance of false tax invoices to various companies, including plaintiffsq and metal, but was not prosecuted upon determination that there was no suspicion.

2) oMWA notice

In the statement in Eul evidence 16, i.e., the representative director o-o-o-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O-O.

3) km

In light of the following circumstances acknowledged by comprehensively considering the respective descriptions of evidence Nos. 17, 18, and 19 and the overall purport of the pleadings, it is difficult to readily conclude that, solely on the basis of the above facts, the tax invoices issued from Plaintiff q. k cases are false tax invoices, and there is no other evidence to acknowledge them.

① KRK paid KRW 17,713,202 for the third period and fourth period of value-added tax in 201 prior to commencing Plaintiffq metal and transactions. ② KRK’s representative director’s and representative director are specifically memorying the reasons behind the closure of Plaintiffq’s employees and Plaintiffq metal to be supplied to PlaintiffqG, and Plaintiffq. Moreover, KR was stated in all measurement specifications of k case submitted by the Plaintiffs that they were in charge of waste transport to this x and new x, and the names and telephone numbers of the carriers were stated in all measurement specifications of k case submitted by the Plaintiffs, and the actual signature of this x and new x is also written by the Plaintiffs. ③ under suspicion of having issued false tax invoices to various companies, including Plaintiffq. However, in light of the fact that Plaintiffq’s portion of issuance of false tax invoices for Plaintiffq is not charged, at least the possibility of issuing Plaintiffq, etc. may not be ruled out.

(iv) criricleing;

In full view of the purport of the argument in the statement No. 20 of the evidence No. 320, the representative ParkV of the Ccrithing made a detailed statement about the process during which the Ccrithr ccrithr ccrithr ccrithr begins, the method of purchasing non-frithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr crithr scrithr

Comprehensively taking account of the aforementioned facts admitted and the following circumstances admitted by the evidence:

bbb. n.n. metal, m. metal, m.q., www resources for www, e.m., e.m. and r resources (hereinafter referred to as “each of the transaction parties in the machine”), it is reasonable to deem that the supplier was issued a tax invoice as stated in each of the above transaction parties even when the Plaintiffq. was supplied to others, not the above transaction parties, but the supplier was in fact supplied with waste, etc., and therefore, the tax invoice issued by each of the above transaction parties constitutes a tax invoice different from

① In light of the social experience as seen earlier, each of the other transaction parties appears to have not been able to operate the scrap metal business that supplies waste roads, etc., and most of them seem to have not been equipped with facilities that can be deemed to have actually operated the business at the place of business registered on the business registration certificate.

② Many of the remaining business partners were identified as data, and close down ex officio or registered business by the tax office, and have failed to pay a reasonable amount of value-added tax.

③ The remaining transaction partners, even though they did not report purchase to the tax authorities at the time of the issuance of the instant tax invoice, or did not report purchase excessively less than that of the sales, up to KRW 00 billion or KRW 00 billion.

④ Many of the remaining transaction partners have withdrawn in cash immediately from the date of deposit in cash or through the process of transferring the revenues deposited in the transaction account to another account when the payment is made from Plaintiffq metal. It seems to support the situation that the actual supplier of the transaction with the Plaintiff exists separately because it is difficult for the business entity normally operating the business to always withdraw the revenues deposited in the transaction account.

⑤ Meanwhile, although Plaintiffq metal submitted a table of accounts, etc. as evidence of actual closure transactions, it is merely a report document indicating the past fact that there was the supply of a certain quantity and the payment of the price. In addition, it is insufficient to presume that some of the above purchasing parties and the third party, other than the other transaction parties, actually supplied the Plaintiffq and metal to the Plaintiff, as stated in the instant tax invoice, on the ground that there is no evidence to prove the facts constituting the accusation of the accusation case. However, such circumstance is merely a lack of evidence to prove that the transaction party is the supplier of the waste movement, etc., as stated in the instant tax invoice, on the ground of the existence of such materials or circumstances. Such materials do not necessarily mean that the Plaintiffq and metal have probative value exceeding the fact that the Plaintiffq were supplied with the waste movement, etc., and it is difficult to presume that the third party, other than the Plaintiffq, actually supplied the waste movement, etc. to the Plaintiffq.

(6) Where an individual entrepreneur has borrowed his/her name and completed his/her business registration, unless the name of the nominal lender is indicated in the name column of the tax invoice, the tax invoice constitutes a tax invoice stating differently from the fact (see Supreme Court Decision 2016Du4307, Oct. 13, 2016; 2016Du4307, Oct. 13, 2016; tt (b) ty (n metal), nyy (n metal) andt (m metal) are different to the degree of his/her involvement, but it is reasonable to deem that the purchase of the closed metal is not actually conducted or it is not deemed the principal to whom the profit accrued.

(2) Whether Plaintiffq. is the trading party of good faith and without fault or not

(A) An actual supplier and a supplier on a tax invoice may not deduct or refund an input tax amount unless there is any special circumstance that the supplier was unaware of the fact that the supplier was unaware of the nominal name of the tax invoice, and that the supplier was not negligent in not knowing the fact that the supplier was not aware of the nominal name (see Supreme Court Decision 2009Du1808, Jun. 11, 2009). However, in full view of all the circumstances, including the developments leading up to the issuance and issuance of the tax invoice, the price of the goods or services supplied, the specific route and process of the goods or services supplied, the specific route and facilities of the goods or services supplied, and the recipient’s confirmation of the business facilities, it is difficult to conclude that the actual supplier is the supplier, and the supplier under the tax invoice is merely the nominal supplier, and it is difficult to conclude that the beneficiary was negligent in not knowing the nominal name of the supplier.

(B) In full view of the following circumstances acknowledged based on the above facts and the evidence, it is reasonable to deem that there was a sufficient reason to suspect that the plaintiffqal metal was a disguised enterpriser in light of the facts revealed in the process of collecting data to determine whether the remaining transaction partners are eligible persons. Thus, it is insufficient to acknowledge that the evidence presented by the plaintiffs was insufficient to prove that the plaintiffqal metal was not negligent in not knowing that the name of the supplier of the tax invoice on each transaction is different from the actual supplier, and there is no other evidence to prove otherwise. The plaintiffs' assertion on this part is without merit.

① In light of the fact that Plaintiff ChoW worked for 27 years of age and 15 years at an end-dong-related enterprise, and sold y metal in the process of opening up a umetallic to a corporation and operating it. As of May 27, 1996 at the workplace as of May 27, 1996, Plaintiff ChoW opened a y metal and worked for an enterprise related to the closed-dong for 40 years since September 6, 201, and opened a Plaintiff q metal up and operated it up to the present, etc., Plaintiff ChoW seems to have been fully aware of the supply structure and distribution channel of the closed-end agreement, the actual condition and risk of transactions based on materials widely spread in the relevant industry.

② Most of the rest of the clients are companies engaged in the business immediately before the trade with Plaintiff Chow, and a considerable number of representatives of each of the above clients have no experience in the business related to closed-dong. Also, since most of the business sites of the above clients are closed-dong-related business establishments or are inappropriate to use them as business sites, it appears that the Plaintiff q metal actually confirmed the business location of each of the above clients, it could have easily known that it did not actually run the closed-dong-related business. The Plaintiffs asserted that they had taken photographs after visiting and confirming the business location. However, the Plaintiffs asserted that the pictures submitted by the Plaintiffs were most taken, and it is difficult to confirm whether they are equipped with the source of a photograph, because they are the photographs taken out from the outside, and the size and quantity of the pictures are different; that they are not prepared on the date of visiting the business site; that they did not directly enter each of the purchaser's business sites and check whether they are closed-dong-related business sites; and that they did not directly request the Plaintiff q to submit the parts directly related to the closed-house.

③ From 2011 to 2012, Plaintiffq. traded between each other with the remaining transaction partners, and there were a considerable number of cases where the transaction period was concentrated during a short period of time or the number of transactions was low. However, it is difficult to view it as a hot normal transaction method.

④ In order to support the actual transaction, the Plaintiffs submitted a warning slip, a business registration certificate for each customer, a visiting place of business, a client’s photograph, and a driver’s certificate. However, the relay chart is merely merely a report document indicating the supply of a certain quantity and the past fact that the payment was made. The business registration certificate is delivered to the head of the competent district tax office having jurisdiction over the place of business by requiring the entrepreneur to apply for registration to the head of the competent district tax office in order to identify taxpayers of value-added tax, etc. and to secure taxation data, and it is merely a certificate proving the registration of a business fact, and it is not recognized that the mere certificate meets the qualification or requirement to conduct business (see Supreme Court Decision 2003Do6934, Jul. 15, 2005). In light of the reality of the frequent closed consent transaction (see, e.g., Supreme Court Decision 2003Do6934, Jul. 15, 2005).

(3) Whether the title trust of the instant shares was held

The reasoning of this Court's judgment is that the judgment of the court of first instance is the same as that of 2 to 20 pages on the 17th day below the judgment of the court of first instance (However, the judgment of the court of first instance 270 weeks '270 weeks' '5th day of the judgment of the court of first instance' '540 weeks').

(4) The scope of the tax amount to be cancelled

(A) As seen earlier, among the instant tax invoices, the tax invoices issued by u, oM&A, kk cases, and ccricleing cannot be deemed to constitute a tax invoice different from the facts under Article 17(2)2 of the former Value-Added Tax Act. As such, the portion of each of the instant tax invoices premised on the fact that the said tax invoices are false should be revoked in an unlawful manner.

3. Conclusion

Therefore, the plaintiffs' claims shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, it is accepted in part of the plaintiffs' appeal and it is modified as the judgment of the court of first instance.

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